EX-4.18 4 ex4-18.htm EX-4.18

 

Exhibit 4.18

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

 

 
 

 

CLOUD MINING SERVICES AGREEMENT

 

THIS CLOUD MINING SERVICES AGREEMENT (this “Agreement”) is made on ____________, 2026.

 

Between:

 

(1)THE ENTITY WHOSE NAME AND ADDRESS ARE SET OUT IN ROW (A) OF SCHEDULE 1 (“Customer”) and

 

(2)THE ENTITY WHOSE NAME AND ADDRESS ARE SET OUT IN ROW (B) OF SCHEDULE 1 (the “Vendor”)

 

(each a “Party” and collectively referred to as the “Parties”).

 

(A)Customer is an Affiliate (as defined below) of NIP Group Inc. (“NIP”), NIP, Customer and its Affiliates are operating crypto mining business.
  
(B)The Vendor is a cloud mining service provider and provides cloud mining services to cryptocurrency miners.
  
(C)Customer wishes to acquire the Services (as defined below) from the Vendor.
  
(D)The Vendor shall supply the Services to Customer in accordance with the terms of this Agreement.

 

It is agreed as follows:

 

1.DEFINITION AND INTERPRETATION

 

In this Agreement unless the context otherwise requires, the provisions in this Clause ‎1 apply:

 

1.1.Definitions

 

“Affiliate” means, in relation to any entity, any entity Controlled, directly or indirectly, by the entity, any entity that Controls, directly or indirectly, the entity, or any entity directly or indirectly under common Control with the entity;

 

“Applicable Law(s)” means all legally binding laws, statutes, regulations, subordinate legislation, orders and decrees of any Governmental Body, and any judgments, decisions and injunctions of any court or tribunal, in each case having jurisdiction over the matter in question;

 

“Asset Purchase Agreement” means certain on-rack sales and purchase agreement, dated as of November 3, 2025 attached hereto as Appendix A, as amended and restated from time to time;

 

“Billing Period” means the period of approximate one (1) month for which the Vendor or the person designated by the Vendor issues invoices to the Customer for the Services provided during such period, which shall follow the following principle: (a) the first Billing Period shall commence from 00:00 (Beijing Time) on the Effective Date until 23:59 (Beijing Time) on the last calendar day of the same month, and (b) each of the subsequent Billing Periods shall commence from 00:00 (Beijing Time) on the first calendar day of the month following the previous Billing Period until 23:59 (Beijing Time) on the last calendar day of such month;

 

 

 

 

“Business Day” means a day (other than a Saturday, Sunday or a public holiday) on which banks are open for business in British Virgin Islands;

 

“Control” means, in respect of a person, the holding, or controlling, in each case, directly or indirectly, of shares or any similar rights of ownership in that person bearing the majority of voting rights attaching to all the shares or other rights of ownership in that person or having the power to direct or cause the direction and management of the policies of that person whether as a result of the ownership of shares, control of the board of directors, contract or any power conferred by the articles of association or other constitutional documents of such person, and “Controlling” and “Controlled” shall be construed accordingly;

 

“Digital Currencies” means Bitcoin (“BTC”) or any digital currency that Customer and the Vendor agree upon;

 

“Effective Date” means the date on which the closing of the transaction contemplated under the Asset Purchase Agreement occurs.

 

“Fees” means the total consideration payable by the Customer to the Vendor under this Agreement, comprising (a) the Fixed Consideration and (b) the Variable Fees, each as defined below.

 

“Fixed Consideration” means the consideration paid by NIP under the Assets Purchase Agreement for the Purchased Hashrates, which equals to the product of USD8.00 per T, multiplied by the Service Hashrate of the Vendor as defined in the Assets Purchase Agreement, by issuing certain amount of Class A Shares to the Vendor or its assignees pursuant to the Asset Purchase Agreement. Such Fixed Consideration shall be adjusted accordingly in the event of any adjustment to the Vendor’s Service Hashrate under the Asset Purchase Agreement.

 

“Variable Fees” means the fees for any ancillary or supporting services required in the course of providing the Purchased Hashrates, including (a) Hosting Fees, (b) Operation and Maintenance Fees, and (c) Repair Fees and other one-off fees, payable by the Customer in accordance with Schedule 2.

 

“Force Majeure” means in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, which is unforeseeable, or even if foreseeable, unavoidable and occurs after the date of this Agreement, and prevents, frustrates, hinders or delays, that Party from performing any obligation imposed upon that Party under this Agreement, including, to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist activities, military disturbances, nuclear or natural catastrophes or acts of god, national strikes, riots, epidemics, earthquakes, floods, hurricanes or typhoons, explosions, and regulatory or administrative or similar action or delays to take actions of any Governmental Body. “Governmental Body” means any national, federal, regional, provincial, state, county, city, local or foreign government, or any court, tribunal or arbitrator or any regulatory or supervisory authority, agency, ministry, commission, branch, department, division, body, official or instrumentality thereof, in each case being of competent jurisdiction and “Governmental Bodies” shall be construed accordingly;

 

“Hashrate” means the mining power of the Mining Equipment used to mine Digital Currencies and which is specific to the SHA-256 mining algorithm;

 

 

 

 

“Hosting Fee(s)” means the hosting fee for the Services payable by the Customer based on the power consumption during the applicable Billing Period (as defined in Schedule 2), which shall be calculated in accordance with Schedule 2, subject to the adjustment as contemplated therein.

 

“Mining Equipment” means all software, hardware, systems, platforms, and infrastructure deployed by the Vendor or the Vendor’s subsidiaries or business partners to generate the Hashrates necessary for the provision of the Services to the Customer;

 

“Operation and Maintenance Fee(s)” means the operation and maintenance fee for the Services payable by the Customer based on the power consumption during the applicable Billing Period (as defined in Schedule 2), which shall be calculated in accordance with Schedule 2, subject to the adjustment as contemplated therein.

 

“Purchased Hashrates” means the Hashrates allocated or made available to the Customer by the Vendor pursuant to Clause ‎3.2.1;

 

“Reconciliation Statement” means the statement issued by the Vendor to the Customer every Billing Period for reconciliation between the Parties, which shall set out details of the calculation of the Fees;

 

“Services” has the meaning ascribed to it in Clause ‎3.2;

 

“Term” has the meaning ascribed to it in Clause ‎11.1;

 

“VAT” means value added tax or other similar tax (including goods and services tax and sales tax); and

 

1.2.In this Agreement:

 

1.2.1.unless the context otherwise requires or permits, references to the singular will include the plural;
   
1.2.2.no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it;
   
1.2.3.clause headings are for ease of reference only and are not intended to be part of or to affect the meaning, interpretation or construction of any of the terms and conditions of this Agreement;
   
1.2.4.any reference to persons, includes natural persons, firms, partnerships, companies, corporations, associations, organizations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
   
1.2.5.a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute;
   
1.2.6.any reference to a statute, statutory provision, subordinate legislation, code or guideline (“legislation”) is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation; and
   
1.2.7.any phrase introduced by the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms

 

 

 

 

2.PRECEDENCE

 

2.1.This Agreement comprises the main body of this Agreement and the Schedules and Appendixes under this Agreement, all of which are incorporated into the Agreement by reference.

 

3.SERVICES

 

3.1.Customer hereby engages the Vendor to provide the Services in accordance with the terms of this Agreement, and the Vendor agrees to perform the Services in accordance with the terms of this Agreement.

 

3.2.“Services” shall be provided by the Vendor to Customer in the following manner:

 

3.2.1.upon the Effective Date and during the Term, the Vendor shall provide to Customer the contracted Hashrate capacity during the Term pursuant to Clause 4 hereunder (the “Purchased Hashrates”), in consideration for the Fees hereunder.
   
3.2.2.upon the Effective Date, the Customer shall: pay the deposit equivalent to one (1) month of the Hosting Fee (the “Deposit”) and one (1) month of operation and maintenance fee upon execution of this Agreement. The Deposit shall be held as security for the performance of the Customer’s obligations under this Agreement and shall not be deemed as payment for Services rendered. The Deposit shall not be non-interest bearing and, conditioned upon the Customer’s full compliance with the terms of this Agreement, returned to the Customer after the expiration of the Term; and
   
3.2.3.during the Term and for each subsequent Billing Period, the Customer shall pay the Variable Fees as contemplated in Schedule 2 to the Vendor or any person designated by the Vendor within five (5) calendar days of receipt of the undisputed bill, and in case of late payment, the Customer should pay a penalty of 0.05 per cent per day of the amount of the overdue electricity bill payable.
   
3.2.4.the Vendor shall furnish to the Customer the Reconciliation Statement for the previous Biling Period within seven (7) Business Days from the end of such previous Billing Period. The Customer may raise to the Vendor any objection to the Reconciliation Statement, with data and records supporting such objection, within three (3) Business Days upon its receipt of the Reconciliation Statement, failing which the Vendor shall be deemed to have approved the Reconciliation Statement. In the event of any objection raised by the Customer, the Parties shall diligently and expeditiously work towards resolving the discrepancies between the Reconciliation Statement and the supporting data and records provided by the Vendor. The final determination shall be jointly made by the onsite operation and maintenance staff designated by the Vendor and representatives designated by the Customer on the basis of the actual power consumption, which shall not exceed the amount of the Rated Power Consumption. Upon successful resolution of the discrepancies, the Vendor shall furnish to the Customer a revised version of the Reconciliation Statement and the Customer shall approve such revised version in writing within three (3) Business Days upon receipt. Upon approval of the Reconciliation Statement, or the revised version as applicable, the Vendor will issue the invoice of the Variable Fees for the previous Billing Period.
   
3.2.5.all payments pursuant to this Agreement, including any remittance or refund, shall be made in Tether (USDT), a USD-pegged stablecoin, to the digital wallet address designated by the receiving Party. The payment shall be deemed made upon receipt of the full amount of USDT in the designated wallet. The remitting Party shall bear any transaction fees, gas fees, or other charges associated with the transfer.

 

 

 

 

3.3.The Customer shall have the right to designate the mining pool to which the Purchased Hashrates shall be directed, and the Vendor shall ensure that the Customer’s Purchased Hashrates are connected to its account with the designated mining pool accordingly.

 

4.Hashrate Commitment

 

During the Term of this Agreement, the Vendor shall provide to the Customer a monthly average theoretical Hashrate capacity of 745,926 TH/s at the commencement of the Services equal to the Service Hashrate as defined in the Asset Purchase Agreement, subject to adjustment as provided therein. The Parties acknowledge and agree that the actual Hashrate capacity may fluctuate and decline based on the Parties’ commercial requirements and prevailing network conditions as mutually agreed by both Parties.

 

5.Other Costs and Expenses

 

5.1.During the Term, in addition to the agreed Variable Fees as contemplated in Schedule 2, the Customer shall only bear and be responsible for the reasonable costs and expenses necessary for the provision of the Services, which shall be mutually agreed by the Parties hereunder.

 

6.WITHHOLDING TAX

 

6.1.If any payment to be made in respect of any invoice is subject by Applicable Law to any Vendor-Related Tax, including but not limited to VAT, the Vendor shall be solely liable for bearing the cost of such Vendor-Related Tax and the Vendor shall account to the relevant Competent Authority for the Vendor-Related Tax. Provided always that Customer has possession, as furnished by the Vendor, of declaration(s) of tax residence on the prescribed forms issued by the Competent Authority where the Vendor is domiciled or registered (or other relevant taxation authorities) which are current and accurate in order to confirm the applicability and availability of any reduced rate of Vendor-Related Tax under the provisions of the relevant double taxation convention and/or treaty, the amount of Vendor-Related Tax deducted will/may be calculated by Customer in accordance with any appropriate double taxation convention and/or treaty between the states in which Customer and the Vendor respectively reside. The Vendor shall furnish declaration(s) of tax residence on the prescribed forms issued by the Competent Authority where the Vendor is domiciled or registered (or other relevant taxation authorities) in order that Customer may confirm the applicability and availability of any reduced rate of Vendor-Related Tax under the provisions of the relevant double taxation convention and/or treaty as envisaged above. Payment of the Fees to the Vendor and to the relevant tax authority of the said Vendor-Related Tax shall, for the purposes of this Agreement, constitute full settlement of the sums owing under the relevant invoice. For the purpose of this Clause, the “Competent Authority” means a state authority or department duly authorized to issue declaration(s) of tax residence; and “Vendor-Related Tax” means a tax imposed in respect of a payment under this Agreement that results from a present or former connection between the jurisdiction of the government or taxation authority imposing such tax and the Vendor.

 

 

 

 

6.2.Without prejudice to payment in accordance with Clause constituting full settlement of the sums owing under the relevant invoice, where requested by the Vendor, Customer shall use reasonable endeavours to obtain and provide to the Vendor evidence from the relevant Competent Authority of the payment of the said withholding tax (including, where available, tax deduction certificates or equivalent thereof). Where Customer is not able to obtain such evidence (having used reasonable endeavours), Customer will provide written confirmation itself to the Vendor of the payment of said withholding tax.

 

7.PUBLICITY AND ANNOUNCEMENT

 

7.1.The Vendor shall not make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this Agreement, the wider transactions contemplated by it, or the relationship between the Parties, without the prior written consent of Customer, except as permitted under the Asset Purchase Agreement, or required by Applicable Law, or any Governmental Body.

 

8.WARRANTIES AND INDEMNITY

 

8.1.Each Party warrants to the other Party that:

 

8.1.1.it has the legal capacity and all necessary licences, permits, authorisations, approvals or consents necessary for the performance of its obligations under this Agreement; and

 

8.1.2.it shall promptly pay all sums (including any Digital Currencies arising out of or in connection with this Agreement) that may be due and payable by it under this Agreement.

 

9.CONFIDENTIALITY

 

9.1.The Parties recognize that each Party has a legitimate interest in maintaining confidentiality regarding this Agreement, the subject matter of this Agreement or any other agreements, documents or transactions referred to or contemplated herein and all trade secrets, confidential and/or proprietary knowledge or information of each other Party and its Affiliates which that Party may receive or obtain as a result of entering into or performing its obligations under this Agreement (collectively, “Confidential Information”).

 

9.2.Subject to Clause 9.3, each Party undertakes to the other Parties that it shall keep the Confidential Information in the strictest confidence, and shall not, without the prior written consent of the Party disclosing the Confidential Information, use or disclose to any person Confidential Information, information relating to this Agreement or the transactions contemplated hereunder it has or acquires or information which by its nature ought to be regarded as confidential (including without limitation, any business information in respect of the each other Party which is not directly applicable or relevant to the transactions contemplated by this Agreement.

 

 

 

 

9.3.Clause ‎9.2 shall not prohibit disclosure or use of any Confidential Information if and to the extent:

 

9.3.1.the disclosure or use is required by law, any regulatory body or any stock exchange on which the shares of either Party (or its holding company) are listed;

 

9.3.2.the disclosure or use is required for the purpose of any arbitral or judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement;

 

9.3.3.the disclosure is made to Affiliates and/or professional advisers of any Party on a need-to-know basis and on terms that such Affiliates and/or professional advisers undertake to comply with the provisions of Clause ‎9.2 in respect of such information as if they were a Party to this Agreement;

 

9.3.4.the information is or becomes publicly available (other than as a result of any breach of confidentiality);

 

9.3.5.the disclosing Party has given prior written approval to the disclosure or use; and

 

9.3.6.the Confidential Information is already in the lawful possession of the Party receiving such information (as evidenced by written records) at the time of disclosure.

 

10.LIMITATION OF LIABILITY

 

10.1.Nothing in this Agreement limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.

 

10.2.Neither Party shall have any liability to the other Party for any indirect, incidental, special or consequential loss to the other Party.

 

10.3.Notwithstanding the foregoing, (i) the maximum amount of damages liable by the Vendor to the Customer under this Agreement shall be limited to the amount of Variable Fees paid by the Customer to the Vendor, except that such maximum amount of damages liable by the Vendor shall be increased by the Fixed Consideration in the event of damages arising out of or related to the Vendor’s bad faith or willful misconduct; and (ii) each Party shall not be liable to the other Party unless the amount of damages arising out of or relating to matters for which the Customer has paid the Fixed Consideration exceeds 1% of the Fixed Consideration in aggregate (the “De-minimis Amount”), but once the amount of damages exceeds 1% of the Fixed Consideration in aggregate then such Party may claim for the full amount of the damages suffered by such Party. Notwithstanding anything set forth to the contrary, the limitation of the De-minimis Amount shall not apply to any damages arising from the service provided by the Vendor under this Agreement corresponding to the Variable Fees.

 

11.COMMENCEMENT AND DURATION

 

11.1.This Agreement shall take effect on the Effective Date and continue in full force until the fourth anniversary of the Effective Date (“Term”), unless terminated earlier in accordance with Clause 12 of this Agreement.

 

12.TERMINATION

 

12.1.This Agreement may be terminated by the written consent of both Parties.

 

 

 

 

12.2.A Party shall be entitled to terminate this Agreement on written notice, provided that the other Party shall have received such written notice at least ten (10) Business Days prior to such termination:

 

12.2.1.if the other Party is in material breach of this Agreement and such breach is not curable or, if curable, has not been cured within ninety (90) days after the delivery of written notice of breach by the non-breaching Party; or

 

12.2.2.in the event of a relevant change in the Applicable Law or request by a Government Body which would materially affect the performance of any of the Parties’ obligations under this Agreement or result in either Party being unable to fulfil their obligations or benefit from their rights and entitles under this Agreement and could not reasonably have been foreseen or provided against (e.g., government acts prohibiting or impending any Party from performing its respective obligations under this Agreement).

 

12.3.The Vendor shall be entitled to terminate this Agreement on written notice with immediate effect in the event that:

 

12.3.1.after the issuance of the Notes (as defined under the Asset Purchase Agreement) by NIP in accordance with the Asset Purchase Agreement, in the event that NIP is required to repay all principal amount of the Note as a result of an Event of Default (as defined under the Notes) prior to the conversion of the Notes into the shares of NIP; or

 

12.3.2.before the issuance of the Notes by NIP in accordance with the Asset Purchase Agreement, the occurrence of (a) the Company’s failure to timely repay any loans incurred by NIP or by the Customer (including in an event of acceleration of such loans), except for those entered into with, or owed to, the Vendor, any Seller (as defined under the Asset Purchase Agreement) or its assignee, or any Affiliate of the foregoing, or (b) the insolvency or bankruptcy of NIP or the Customer; provided that, notwithstanding the foregoing, the occurrence of such events shall not constitute a termination event after June 30, 2026 if NIP or the Customer is not in breach of the Transaction Documents in a manner that has resulted the failure of any Closing to take place.

 

12.4.On termination of this Agreement:

 

12.4.1.neither Party shall have any further obligation to the other under this Agreement unless otherwise stated in this Agreement;

 

12.4.2.the Parties shall retain all rights, remedies and obligations that have accrued or become due prior to termination; and

 

12.4.3.the Parties will remain entitled to all rights granted or assigned to it under this Agreement.

 

12.5.In the event of early termination of this Agreement in accordance with Clause ‎12.2, the Parties agree to engage in good faith negotiations to determine the appropriate treatment of any residual value associated with prepaid but unused Services. Any settlement regarding such residual value shall be implemented according to terms specifically negotiated and mutually agreed upon by the Parties at the time of termination. Notwithstanding the foregoing, the Parties expressly acknowledge and agree that the Vendor shall have no obligation to provide refunds, credits, or any other form of compensation to the Customer for residual value attributable to unused Services.

 

 

 

 

12.6.Clause 9 (Confidentiality), Clause 10 (Limitation of Liability), Clause 12 (Termination) and Clause 13 (Other Provisions) shall survive the expiry or termination of this Agreement.

 

13.OTHER PROVISIONS

 

13.1.Further Assurances

 

Each of the Parties shall, and shall use its reasonable endeavours to procure and ensure that any necessary third party shall, from time to time execute such documents and perform such acts and things as any of the Parties may reasonably require to give each of the Parties the full benefit and effect of this Agreement.

 

13.2.Whole Agreement

 

13.2.1.This Agreement contains the whole agreement between the Parties relating to the subject matter of this Agreement at the date of this Agreement to the exclusion of any terms implied by law which may be excluded by contract and supersedes any other previous written or oral agreement between the Parties in relation to the matters dealt with in this Agreement.

 

13.2.2.The Customer acknowledges that (i) certain Cloud Mining Services Agreement by and between Nebula Digital Investment Limited and the Customer dated September 5, 2025, and (ii) certain Cloud Mining Services Agreement by and between Prosperity Peak Limited and the Customer dated September 5, 2025, have been terminated as of the date of this Agreement pursuant to the execution of certain termination agreements to such effect between the parties thereof, and upon the termination of such agreements, (i) all parties’ obligations thereunder have been satisfied or waived; and (ii) there are no pending claims, disputes, or unresolved matters arising from such agreements.

 

13.3.Time of Essence

 

Any time, date or period mentioned in any provision of this Agreement may be extended by mutual agreement in writing between the Parties in accordance with this Agreement or by agreement in writing but as regards any time, date or period originally fixed or any time, date or period so extended as aforesaid time shall be of the essence.

 

13.4.Release, Indulgence, Waiver

 

13.4.1.Any liability to any Party under this Agreement may in whole or in part be released, compounded or compromised, or time or indulgence given, by it in its absolute discretion as regards the other Party under such liability without in any way prejudicing or affecting its rights against such other Party in any other respect.

 

13.4.2.No failure on the part of any Party to exercise and no delay on the part of any Party in exercising any right hereunder will operate as a release or waiver thereof, nor will any single or partial exercise of any right under this Agreement preclude any other or further exercise of it or any other right or remedy.

 

 

 

 

13.5.Assignment

 

Customer may, with prior written notice to the Vendor, at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement. All assignments done by Customer under this Clause are subject to the satisfaction of Know Your Customer checks required by the Vendor.

 

13.6.Remedies

 

No remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any Party shall not constitute a waiver by such Party of the right to pursue any other available remedies.

 

13.7.Third Party Rights

 

A person who is not a Party to this Agreement has no right to enforce any term of, or enjoy any benefit under, this Agreement.

 

13.8.Variation

 

The Parties acknowledge that circumstances may arise during the Term of this Agreement that could not have been reasonably anticipated at execution, including but not limited to, among other things, the Variable Fees as contemplated in Schedule 2 may need to be amended on or around April 18, 2026. In such circumstances, the Parties agree to negotiate in good faith to modify this Agreement as may be necessary to address such changed circumstances.

 

13.9.Costs and Expenses

 

Each Party shall pay its own taxes, legal, professional and other costs and expenses in connection with the negotiation and execution of this Agreement.

 

13.10.Notices

 

13.10.1.Any notice required to be given by a Party to the other Parties shall be in writing, signed by or on behalf of the Party giving it, and in the English language. It shall be deemed validly served if hand delivered, or sent by e-mail, prepaid post or a recognised courier service to the address, email address of the Parties given herein or as may from time to time be notified for this purpose.

 

13.10.2.The initial addresses and email addresses of the Parties are:

 

(a)Customer

 

As set out in Row (a) of Schedule 1

 

(b)The Vendor

 

As set out in Row (b) of Schedule 1

 

 

 

 

13.11.Invalidity

 

13.11.1.If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties.

 

13.11.2.To the extent it is not possible to delete or modify the provision, in whole or in part, under Clause ‎13.11.1, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Clause ‎13.11.1, not be affected.

 

13.12.Counterparts

 

This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. The Parties may enter into this Agreement by executing any such counterpart.

 

13.13.Translation

 

This Agreement may be translated into another language. However, in the event of any inconsistency between the English language version and a translated version, this English version will at all times prevail and take precedence. Any translation must include a provision to the same effect as this Clause.

 

13.14.Electronic signature

 

To the extent permitted by the Applicable Laws, the Parties agree that this Agreement may be executed by way of electronic signatures and delivered via electronic transmission and that this Agreement, or any part thereof, shall not be denied legal effect, validity, or enforceability solely on the ground that it is in the form of an electronic record. The Parties further agree that they shall not dispute the validity, accuracy, legal effectiveness or authenticity or enforceability of this Agreement merely on the basis that it is executed by way of electronic signatures, and that such electronic record shall be final and conclusive of the Parties’ agreement of any relevant matter as set out in this Agreement.

 

13.15.Data protection

 

The Parties hereby acknowledges and agrees that the Parties’ performance of this Agreement may require the Parties to process, transmit and/or store the other Party’s personal data or the personal data of the other Parties’ employees and Affiliates. By submitting personal data to any Party, such Party agrees that such Party and its Affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling such Party to perform its obligations under this Agreement. In relation to all personal data provided by or through a Party to the other Party, such Party procures that it will be responsible as sole data controller for complying with all applicable data protection laws implementing that directive that regulate the processing of personal data and special categories of data as such terms are defined in that directive.

 

13.16.Nature of Agreement

 

Nothing in this Agreement will create, or be deemed to create a partnership, a joint venture, an agency or a fiduciary duty between the Parties. Except as expressly provided herein, neither Party by virtue of this Agreement has authority to transact any business in the name of the other Party or on its behalf or to incur any liability for or on behalf of the other Party.

 

13.17.Governing Law and Dispute Resolution

 

13.17.1.This Agreement shall be governed by and construed in accordance with the laws of Hong Kong.

 

13.17.2.Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the HKIAC Administered Arbitration Rules in force at the time of the commencement of the arbitration.. The place of arbitration shall be Hong Kong. The number of arbitrators shall be nominated and appointed in accordance with the HKIAC Administered Arbitration Rules l be three (3) and. The arbitration proceedings shall be conducted in English.

 

 

 

 

Schedule 1

 

Contract Information

 

Particulars of Customer:  

Company Name :            Mining Ninjas Ltd

 

Registered Address :       Start Chambers, Wickham’s Cay II, P.O.Box 2221, Road Town, Tortola, British Virgin Islands;

 

Contact Person (Title) :   Hicham Chahine (Director); Lulu Xie (Capital Market Team)

 

Contact Person’s Email : [email protected]

     
Particulars of the Vendor:  

Company Name :             [ ]1

 

Registered Address :        [ ]

 

Contact Person (Title) :    [ ]

 

Contact Person’s Email :  [ ]

     
Designated wallet/UID of the Vendor to receive Fees payments   Customer UID/ wallet address: [Pending for now]

 

 

1 NTD: The particulars of the Vendor are to be provided.

 

 

 

 

Schedule 2

 

Variable Fees

 

1.DEFINITIONS

 

1.1.Definitions. The following terms in this Schedule 2 shall have the meaning specified below:

 

“Actual Hosting Unit Price” means the effective unit price per kWh applicable during the relevant Billing Period, which shall initially be the same as the Normal Hosting Unit Price, subject to the adjustment mechanism in accordance with Clause 2.2 of this Schedule 2;

 

“Digital Assets Price” means the price of the applicable digital asset at the relevant hour (Beijing Time), denominated in US Dollar and published on the website of Coinmarketcap (https://coinmarketcap.com/);

 

“End-Period Meter Reading” means the meter reading of the Separate Meter taken at 23:59 (Beijing Time) on the last day of the applicable Billing Period;

 

“Hosting Fee Ratio” means the ratio of the Hosting Fee to the Theoretical Hashrate PPS Income during the relevant period;

 

“Low Power Mode” means the Mining Equipment operates in such a mode that consumes less amount of electrical power than Rated Power and contributes less hasrate than rated hashrate due to the limitation on its performance imposed by and subject to the sole discretion of the Customer;

 

“Minimum Hosting Unit Price” shall have the meaning ascribed to it in Clause 2.3 of this Schedule 2;

 

“Monitoring Software” means the software designated by the Parties to monitor the operation of the Mining Equipment, which shall be AntSentry (version V2 or such other version as may be upgraded by the Customer from time to time) unless otherwise mutually agreed between the Parties;

 

“Normal Hosting Unit Price” shall have the meaning ascribed to it in Clause 2.3 of this Schedule 2;

 

“Online Status” means the status of the Mining Equipment that is powered-on with constant supply of electrical power, has stable connection with network and is accessible via the Monitoring Software where the status tag “Online” is indicated for such Mining Equipment;

 

“Online Status Ratio” means a fraction where the numerator is the sum of the actual length of time of each Mining Equipment in Online Status during the applicable Billing Period, and the denominator is the sum of theoretical length of time of each Mining Equipment in Online Status during the applicable Billing Period. If the Vendor promptly furnishes adequate evidence upon such an event and subject to the Customer’s consent, the theoretical Online duration of each Mining Equipment may exclude the duration during which compulsory power curtailment occurs as a result of a government directive or load limitation programs, as stipulated in the power purchase agreement with the power supplier, provided that such compulsory power curtailment is not a consequence of a breach of any government order or power purchase agreement. The Online Status Ratio shall finally be determined by the data as illustrated on the Monitoring Software, except that if there is a technical failure (including, but not limited to, technical failure of the Monitoring Software and/or the Mining Equipment, or offline of the NUC, etc.) that prevents from reading certain data, the aforementioned numerator and denominator shall be adjusted accordingly to subtract such time during which the relevant data cannot be read due to such technical failure, unless otherwise agreed by the Parties;

 

 

 

 

“Power-off Server(s)” means Mining Equipment that is/are powered off voluntarily by the Customer pursuant to Clause 3 of this Schedule 2;

 

“Power Consumption” means the amount of electricity power consumed by the Mining Equipment during the applicable Billing Period, including any of the Mining Equipment under the Low Power Mode, which shall be determined by subtracting the End-Period Meter Reading of the Billing Period immediately preceding the relevant Billing Period from the End-Period Meter Reading of the relevant Billing Period, the unit of which shall be kWh;

 

“Qualified Status” means the status in which the Mining Equipment is in normal operation and the average hashrate of the ming Equipment in eight consecutive hours is above or equal to 80% of the rated hashrate of the Mining Equipment;

 

“Rated Power” means the amount of the rated electrical power stated on the factory label of the applicable Mining Equipment.

 

“Reconciliation Statement” means the statement issued by the Vendor (or any person designated by the Vendor) to the Customer every Billing Period for reconciliation between the Parties, which shall set out details including but not limited to Power Consumption, the applicable Actual Hosting Unit Price, the Online Status Ratio, Fees chargeable, any occurrence of interruption or suspension of any Service during such Billing Period;

 

“Separate Meter” means the separate meter installed by the Vendor at the data center facility for metering the electrical power consumed by the Mining Equipment;

 

“Standard Mode” means the Mining Equipment operates in such a mode without any limitation on its performance imposed by the Customer;

 

“Theoretical Hashrate PPS Income” means the theoretical earnings of the applicable Mining Equipment based on the actual Mining Pool Bitcoin (BTC) Hashrate of such Miming Equipment with reference to the prevailing network difficulty during the relevant period and the Digital Assets Price, which shall be calculated based on the real-time total network Hashrate and the price of BTC, with a sampling frequency of once an hour on a credible third-party platform2, and the average value of the relevant data in each relevant period shall be the Theoretical Hashrate PPS Income of such period, the specific value shall be determined by the data as illustrated on the Mining Pool. For avoidance of doubt, the Parties agree that: (a) when calculating the Hosting Fee Ratio for the Actual Hosting Unit Price Adjustment in accordance with Clause 2.2 of this Schedule 2, the relevant period shall be the corresponding Billing Period; and (b) when calculating the Hosting Fee Ratio for the voluntary power-off, the relevant period shall be the consecutive 24 x 14 hours.

 

 

2 Unless otherwise specified by the Customer, the third-party platform shall be website of Coinmarketcap (https://coinmarketcap.com/).

 

 

 

 

2.SERVICE FEE AND PAYMENT

 

2.1.Hosting Fee Calculation. Hosting Fee for each Billing Period shall be calculated as follows:

 

Hosting Fee = (Actual Power Consumption) x Hosting Unit Price (i.e., actual Hashrate x measured Power Consumption x 102.5% x electricity unit price ($0.07 /kWh) based on the adjustment mechanism set forth in Clause 2.2)

 

2.2.Hosting Unit Price Adjustment. The initial Hosting Unit Price shall be the Normal Hosting Unit Price, subject to the following adjustment for each Biling Period:

 

(a)If the Hosting Fee Ratio for such Billing Period is higher than 90%, the Hosting Unit Price applicable to such Billing Period shall be adjusted to the higher of:

 

(i)an amount equal to the result of (x) 80% of aggregate of the Theoretical Hashrate PPS Income during such Billing Period, divided by (y) Power Consumption of such Billing Period; or

 

(ii)the Minimum Hosting Unit Price.

 

(b)If the Hosting Fee Ratio for such Billing Period is no higher than 90% but higher than 60%, the Hosting Unit Price applicable to such Billing Period shall be the Normal Hosting Unit Price.

 

(c)If the Hosting Fee Ratio for such Billing Period is no higher than 60%, the Hosting Unit Price applicable to such Billing Period shall be adjusted to the lower of:

 

(i)an amount equal to the result of (x) 90% of aggregate of the Theoretical Hashrate PPS Income during such Billing Period, divided by (y) Power Consumption of such Billing Period; or

 

(ii)the Normal Hosting Unit Price.

 

(d)If the Hosting Fee Ratio for such Billing Period is no higher than 90%, the Hosting Unit Price applicable for such Billing Period shall equal to the Normal Hosting Unit Price.

 

(e)Cost Increases. Where the electricity cost of the Vendor increases above the Normal Hosting Unit Price due to requirements of a governmental agency or third-party electricity provider, the Vendor may notify the Customer in writing and, upon the Customer’s request, the Vendor shall furnish reasonable supporting documentation therefor. Upon such notification, the Parties agree to negotiate in good faith to adjust the Hosting Unit Price to account for such increase in electricity cost. For the avoidance of doubt, nothing in this Clause 2.2 shall affect the Customer’s right to terminate without penalty.

 

2.2.1The applicable Hosting Fee under this Schedule are as follows:

 

(a)Normal Hosting Unit Price (including non-deductible taxes/expenses): US$0.073/kWh

 

Minimum Hosting Unit Price (including non-deductible taxes/expenses): US$0.063/kWh

 

(b)Monthly Theoretical Hosting Fee (including non-deductible taxes/expenses): ∑Rated Power of Each Mining Equipment Powered-On (kW) x Normal Hosting Unite Price x 24 x 30.

 

 

 

 

2.3.Operation and Maintenance Fee Calculation. The operation and maintenance fees for each Billing Period shall be calculated as follows:

 

Operation and Maintenance Fees = operation and maintenance actual unit price x monthly Power Consumption (i.e. actual hashrate (TH) X (21.5/1000) X105% X 24 X maintenance and service fee unit price (US$0.002/kWh) based on the adjustment mechanism set forth in Clause 2.5)

 

2.4.Monthly Power Consumption Calculation and Operation and Maintenance Actual Unit Price Adjustment.

 

(a)Monthly power consumption shall be calculated as follows:

 

(i)If the Mining Equipment operate in Standard Mode, monthly theoretical power consumption = ∑Daily hashrate of mining pool statistics operation account (T) x Theoretical hourly power consumption of mining machine per T (T/W/H) x 105% x 24(H);

 

(ii)If the Mining Equipment operate in Low Power Mode, monthly theoretical power consumption = ∑Daily hashrate of mining pool statistics operation account (T) x Theoretical hourly power consumption of each mining machine power mode (T/W/H) x 105% x 24(H); and

 

(iii)Actual power-on duration of current Billing Period means the acutal cumulative time that the Mining Equipment is powered-on with a constant supply of electrical power of the current Billing Period.

 

(b)Operation and maintenance actual unit price shall be linked to and adjusted by the monthly average online qualified ratio, in accordance with the following formulas:

 

(i)When the Mining Equipment monthly average online qualified ratio >= 98%, operation and maintenance actual unit price = operation and maintenance execution unit price, being US$0.002/kWh;

 

(ii)When 95% <= the Mining Equipment monthly average online qualified ratio < 98%, operation and maintenance actual unit price = operation and maintenance execution unit price x 0.9;

 

(iii)When the Mining Equipment monthly average online qualified ratio < 95%, operation and maintenance actual unit price = operation and maintenance execution unit price x 0.7; and

 

(iv)monthly average online qualified ratio = ∑ daily quantity of Mining Equipment in Qualified Status in the current month / ∑ daily quantity of Mining Equipment in Online Status in the current month.

 

2.5.Repair Fee. Repair Fee shall be payable as per use.

 

Other One-off Fees. Other one-off fees set forth in the applicable Reconciliation Statement shall be paid in accordance with such Reconciliation Statement, including but not limited to the on-rack/off-rack fees and other miscellaneous fees. Except for the on-rack and off-rack of faulty Mining Equipment, if the Customer needs to load on-rack or move off-rack Mining Equipment in bulk (i.e. more than five hundreds (500) miners at one time) due to additional deployment ,replacement or withdrawal of Mining Equipment, and the Vendor or the maintenance and operation service provider has to employ third party temporary workers to complete the on-rack or off-rack of Mining Equipment and other work, the Vendor shall be entitled to charge the Customer separately. However, in this situation, the fees related to employ third party temporary workers needs the Customer’s prior written confirmation before the incurrence of the employing third party temporary workers. The on-rack loading of the Mining Equipment in bulk includes the following actions: unloading, unpacking and loading on-rack of delivered the Mining Equipment. The off-rack moving of miners in bulk includes the following actions: off-rack, dedusting, packing and truck loading of the Mining Equipment. The on-rack/off-rack fees shall be charged in accordance with the quantity of the Mining Equipment x US$3/unit.

 

(signature page to follow)

 

 

 

 

This Agreement has been entered into by the Parties on the date hereof:

 

Customer   The Vendor
     
Signed for and on behalf of Mining Ninjas Ltd   Signed for and on behalf of [ ]
     
     
(Authorised signatory)   (Authorised signatory)
     
Name of signatory:     Name of signatory:

 

 

 

 

Appendix A

 

Asset Purchase Agreement